icen Stuart M. Lederman Partner DANZIG Direct: SCHERER 1: 973.451.8456 HYLAND £: 973.451.8678 slederman@riker.com Reply to: Morristown PERRETTIw ATTORNEYS AT LAW December 8, 2014 By Federal Express Hon, Julio L. Mendez, AJS.C. Superior Court of New Jersey Atlantic County Law Division Civil Courts Building 1201 Bacharach Boulevard Atlantic City, NJ 08401 RE: Casino Reinvestment Development Authority v. Charles Birnbaum, et al. Docket No. ATL-L-589-14 Dear Judge Mendez, This firm represents the Casino Reinvestment Development Authority (CRDA) in the above-referenced matter. In lieu of a formal brief, please accept this Letter Brief in Support of RDA's Opposition to Defendants Charles Birnbaum's and Lucinda Birnbaum’s ("Defendants") mation for reconsideration returnable before Your Honor on December 19, 2014. For the reasons set forth below, CRDA respectiully requests that the Court deny Defendants’ motion. PROCEDURAL HISTORY AND STATEMENT OF FACTS CRDA initiated this condemnation action on February 11, 2014, by filing a Verified Complaint, Declaration of Taking, and Order to Show Cause with the Court. On March 10, 2014, the Court entered CRDA’s Order to Show Cause requiring Defendants to appear and present any defenses to the condemnation on April 21, 2014, which was subsequently adjourned by the Court to May 20, 2014. Headquarters Plaza, One Speedwell Avenue, Morristown, N] 07962-1981 + t: 973.538.0800 f: 973.538, 1984 50 West State Street, Suite 1010, Trenton, Nj 08608-1220 + t: 609.396.2121 f 609.396.4578 500 Fifth Avenue, New York, NY 10110 + t: 212.302.6574 f 212.302.6628 wwwrikercomHon, Julio L. Mendes, AJS.C. December 8 2014 Page 2 ‘On or about May 1, 2014, Defendants moved to convert this matter into a plenary hearing and for the pro hac vice admission of multiple foreign attorneys. Both parties briefed these issues and on May 20, 2014, the Court held oral argument. On June 24, 2014, the Court denied Defendants’ request for a plenary hearing without prejudice and requested that the parties provide additional briefing on specific issues. The parties submitted their supplemental briefs and on October 21, 2014, the Court held oral argument. On November 12, 2014, the Governor's Advisory Committee on New Jersey's Gaming, Sports and Entertainment issued an updated report (the “Update"). This Court entered a final judgment in this matter on November 17, 2014, finding that CRDA has the right and statutory authority to acquire Defendants’ property through condemnation, Inexplicably, one day later, Defendants filed a motion to supplement the record with the Court, requesting that this Court consider the Update in making its decision. In support of that motion, Defendants submitted the November 14, 2014 Second Supplemental Certification of Robert McNamara (the “McNamara Cert.” or the “\Certification”), to which the Update was appended. On November 25, 2014, CRDA filed its opposition to Defendants’ motion to supplement the record. On November 26, 2014, Defendants filed a motion for reconsideration requesting that the Court vacate its November 17, 2014 order granting CRDA's application to exercise its power of eminent domain with respect to the subject property and denying Defendants’ application to dismiss the Verified Complaint and to reconsider the matter in light of “new evidence” ~ the Update.Hon, Julio L. Mendes, AJ.S.C. December 8, 2014 Page 3 LEGAL ARGUMENT Reconsideration under R, 4:49-2 is “a matter within the sound discretion of the Court, to be exercised in the interest of justice.” D'Atria v, D'Atria, 242 N,J. Super. 392, 401 (Ch. Div. 1990). But, reconsideration is to be utilized narrowly: A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court. Rather, the preferred course to be followed when one is disappointed with a judicial determination is to seek relief by means of either a motion for leave to appeal or, if the Order is final, by a notice of appeal. Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either |) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. Said another way, a litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process. D’Atria v, D’Atria, 242 NJ. Super. 392, 401 (Ch. Div. 1990) (emphasis added). Reconsideration cannot be used to expand the record and reargue a motion. Reconsideration is only to point out “the matters or controlling decisions which counsel be res the court has overlooked or as to which it has erred.” R. 4:49- 2. A motion for reconsideration is designed to seek review of an order based on the evidence before the court on the initial motion, R. |:7-4, not to serve as a vehicle to introduce new evidence in order to cure an inadequacy in the motion record. Capital Fin. Co. of Delaware Valley v. Asterbadi, 398 NJ. Super. 299, 310, 942 A.2d 21, 27 Cummings v. Bahr, 295 NJ. Super. 374, 384 (App. Div.1996)) (App. Div. 2008) (ci Furthermore, R. 4:49-2 requires that [tJhe motion state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred. . . Defendants’ motion fails to meet any one of these standards.Hon, Julio L. Mendes, AJ.S.C. December 8, 2014 Page 4 A. Defendants Have Not Demonstrated Why This Court Should Engage In Reconsideration. The Court should deny Defendants’ motion because Defendants have failed to demonstrate why this Court should reconsider its decision. As explained by the D’Atria Court, a litigant must first “demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.” D'Atria, 242 NJ. Super. at 402. Defendants broadly claim that this Update warrants vacation of the entirety of this Court's November 17, 2014 Opinion because the Update allegedly reinforces two of Defendants previously rejected arguments. (Notice of Motion, p. 2). Yet, Defendants (1) do not assert that the Court erred or acted in an arbitrary, capricious, or unreasonable manner; (2) provide no legal argument or authority explaining how consideration of the Update would require this Court to alter, amend, or vacate its order and decision; (3) do not state with specificity exactly what holdings contained in the Court's Opinion require reconsideration in violation of the requirement of R. 4:49-2; and (4) do not even set forth the standard governing reconsideration and provide no law as to why it is appropriate here. See Grow Co. v, Chokshi, No. BER-C-280-05, 2006 WL 551367, at *2 (Ch. Div. Mar. 3, 2006) (unreported) (“Despite the mandates of R. 4:49-2 and R. 4:50-I, plaintiff's application neither sets forth the matters supposedly overlooked by the court nor does it suggest how this court might have erred. ... Plaintiff only asserts generally the court's holding and rationale should be reconsidered, without substantiating the same,”). On these bases, the Court should deny Defendants’ motion.Hon, Julio L. Mendes, AJS.C. December 8, 2014 Page 5 A review of Defendants’ motion for reconsideration and their motion to supplement the record reveals that Defendants recycled their motion to supplement the record by labeling it a motion for reconsideration. A motion to supplement the record is not a motion for reconsideration, Cummings v. Bahr, 295 N)J. Super. 374, 384 (App. Div. 1996). (“Trial courts should grant motions for reconsideration “only under very narrow circumstances.") Defendants have a burden to meet under R. 4:49-2 before the Court can engage in reconsideration. By recycling their prior motion, Defendants have failed to provide the necessary justification for this Court to engage in reconsideration and thus have not met their burden. Accordingly, this Court should not engage in the reconsideration process. B. _ Defendants’ Motion Is Still Supported By An Improper Certification. The Court should deny Defendants’ motion for reconsideration because Defendants again rely on an improper certification in violation of R. 1:6-6. Defendants submit the same McNamara Cert. which was first submitted in support of Defendants’ motion to supplement the record, The McNamara Cert. has not been altered since it was first submitted, Thus the McNamara Cert. still violates R. 1:6-6. As explained in CRDA’s November 25, 2014 letter brief in opposition to Defendants’ motion to supplement the record, R, 1:6-6 provides that [if a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. R, 1:6-6 (emphasis added). Pursuant to R. 1:6-6, documents must be incorporated by reference in an appropriate affidavit or certification, which properly authenticates material that isHon. Julio L. Mendes, AJ.S.C. December 8 2014 Page 6 otherwise admissible. Howe v. New Jersey Transit Corp, No. A-5362-06T1, 2008 WL 2796462, at *4 (App. Div. July 22, 2008) (unreported opinion). For an affidavit or certification to be considered proper under R. 1:6-6, it must only include facts that are admissible in evidence based on the affiant’s personal knowledge. Affidavits and certifications which contain hearsay, the affiant’s opinion, or argument are insufficient under R. 1:6-6 and thus should not be considered. Smithey v, Johnson Motor Lines, 140 NJ. Super. 202, 206 (App. Div. 1976 v. Mauro, No. A-0137-13T4, 2014 WL 2741066, at *1 (App. Div. June 18, 2014) (unreported ; Mauro opinion) (finding that pursuant to R, 1:6-6 the Court could not consider the defense counsel's certification because it was not based on counsel's personal knowledge). Rather than submitting a supporting legal memorandum, Defendants improperly make arguments as to why the Update should be considered in the Certification to which the Update is appended Defendants again acknowledge the argument in the Certification when they state in their notice of motion that they rely on the Certification “which explains that the status and future of the Tourism District and CRDA’s role in revitalization efforts in Atlantic City are in serious ration, at p. 2 question” after the issuance of the Update. (See Notice of Motion for Reco (emphasis added), Moreover, in his certification, Mr. McNamara makes such statements as “The Report proposes major changes to the Tourism District and to CRDA's funding and authority that are relevant to the above-captioned case” © “[T]he Report recommends the following actions: Concentrating revitalization efforts into five key areas of Atlantic City rather than scattered within the Tourism District (which do not appear to include the Birnbaums’ longtime family home. * “These three points serve to reinforce the Birnbaums’ legal arguments. ..." «The “Atlantic City Map” . . . in Appendix A appears to indicate that the areas of focused redevelopment would not include the Birnbaum property...”Hon, Julio L. Mendes, AJ.S.C. December 8 2014 Page 7 which provide an editorial gloss on select statements from the Update. See McNamara Cert., 92-4.9. These statements are opinions, arguments, and conclusions, not facts. They do not belong in a certification, should not be allowed to become part of the record, and are improper in violation of R. 1:6-6. The certification is also factually inaccurate. The certification suggests that the report recommends excluding from the “revitalization efforts” the Defendants’ home. (McNamara Cert, {] 3b). A review of the Appendices of the report does not make that clear. In fact, one of the aerial photographs titled “North Boardwalk, University Park & Gardner's Basin” in Appendix B has an area outlined in red which involves the Defendants’ property. See Update, p. 26. Because Defendants append the “new information” to an improper certification in support of their motion for reconsideration, Defendants’ motion for reconsideration should be denied. C. The “New Information” Does Not Warrant Alteration, Amendment, or Vacation. Even if this Court engaged in reconsideration, the Update would not change this Court's decision. Defendants claim that three points from the Update serve to reinforce the Birnbaums' legal arguments that: (1) the State's plans for revitalizing Atlantic City are in flux and may, or may not require the Birnbaums’ property, and (2) the Tourism District is basically a zoning designation, and is certainly not a command from the Legislature to condemn each and every parcel in the Tourism District. Specifically, the uncertainty surrounding both the RDA's funding and the State's revitalization plans for the Tourism District call info further question whether CRDA has articulated a sufficiently specific, non- speculative plan to justify the use of eminent domain here. (Notice of Motion at p. 3).Hon, Julio L. Mendes, AJ.S.C. December 8 2014 Page 8 First, Defendants legal arguments are exactly the same as those already made and already rejected by this Court, just now with what Defendants allege is “new evidence” ~ the Update. Defendants argue that the Update “reinforces” these rejected arguments. But reconsideration cannot be used to reargue a motion. Asterbadi, 398 Nj. Super. at 310. See Carney v. Cannon, No. A-2276-12T3, 2014 WL 2533786, at *3 (App. Div. June 6, 2014) (unreported) (“[W]e determine that the motion to reconsider brought in this matter was nothing other than a re-hash of the same arguments patiently and properly denied . . . on numerous occasions”); Tuck v. W. Caldwell Twp., No. 012017-2011, 2012 WL 6712088, at *4 (NJ. Tax Ct. Dec, 24, 2012) (“Plaintiff's motion for reconsideration is nothing more than a repetition of their arguments already proffered to and considered by this court.”). Second, Defendants’ proffer of the Update is not a “game-changer.” See Palombi Palombi, 414 NJ. Super. 274, 289 (App. Div. 2010) (“[T]he magnitude of the error cited must be a game-changer for reconsideration to be appropriate.”). The Court rejected Defendants’ arguments because they lacked legal merit. The Court has held already that (1) The “legitimate public purpose to support the taking of the Birnbaum property is a result of compelling, consistent and duly enacted public policy of the State of New Jersey”; (2) The “legislative intent of the eminent domain enabling statute was to give the CRDA broad powers to achieve the goals of promoting tourism, creating jobs, and promoting the casino industry” and thus “CRDA has a very broad eminent domain legislative authority”; (3) It “agrees with the CRDA’s position that they are not required to produce plans identifying specific uses or structures for the property”; (4) Ie “agrees that like most large development projects, the process begins with the assemblage of land for a public purpose”; (5) “[T]he resolutions passed by the CRDA Board for the ... creation of the South Inlet Mixed Use development Project provide a great deal of specificity, sufficient in the Court’s opinion to justify the taking of the Birnbaum property”; (6) “[T]he Birnbaum arguments regarding lack of specificity lack merit” andHon, Julio L. Mendes, AJ.S.C. December 8, 2014 Page 9 (7) The “Court is also not persuaded by the Birnbaums’ argument that the CRDA may not land bank for an unspecified future use.” (Opinion, pp. 6, 8 14-16) (emphasis added). Defendants proffer of further factual support does not change the fact that their arguments, repeated here, lack legal merit. The Update at best is simply cumulative factual support for meritless legal arguments. By proffering further factual proof of legal arguments already rejected by this Court, Defendants are attempting to take a “second bite at the apple.” See D'Atria, 242 NJ. Super. at 402 (“[MJotion practice must come to an end at some point, and if repetitive bites at the apple are allowed, the core will swiftly sour.”) Third, there is no evidence that the recommendations contained in the Update have been adopted by the State, CRDA, or the Legislature. Defendants’ motion hinges on the hypothetical “Jf CRDA follows the Report's recommendation. . .." (Notice of Motion, p. 3). But unless and until the proposals and recommendations of the Governor's Advisory Committee are adopted by the Legislature, the Update has no factual weight or relevancy because CRDA only acts pursuant to its statutory authority. For now the Update contains mere proposals with no binding significance. Thus, the Update is irrelevant and not “probative, competent evidence.” D’Atria, 242 NJ. Super. at 401 Fourth, even if the Update were relevant, as explained above, Defendants’ claim that the Update demonstrates that the Birnbaum property might not be included in these proposals is inaccurate. See Part B, p. 7, supra. Finally, as explained above, it is evident that Defendants have re-submitted their motion to supplement the record to this Court, but “dressed-up” as a motion forHon, Julio L. Mendes, AS.C. December 8 2014 Page 10 reconsideration, Defendants admittedly did not get their motion to supplement filed before this Court entered final judgment; Defendants now are using reconsideration pursuant to R. 4:42-9 as a vehicle to supplement the record post-final judgment. But reconsideration “cannot be used to expand the record.” Asterbadi, 398 NJ. Super. at 310 (emphasis added). As CRDA explained in its November 25, 2014 letter brief in opposition to Defendants’ motion to supplement the record, if Defendants would like to supplement the record with the Update post-final judgment, their remedy lies in the Appellate Division pursuant to R, 2:5-5(b). Baptiste v. Jallow-Baptiste, No. A-0679-12T3, 2014 WL 1375460, at *7 (App. Div. Apr. 9, 2014) (unreported) (“Unlike motions to correct the record, a motion to supplement must be filed with “the appellate court.”). CONCLUSION For the foregoing reasons, the CRDA respectfully requests that this Court deny Defendants’ motion for reconsideration. Respectfully submitted, CO Who Stuart M, Lederman, Esq. Attorney No. 02954-1985, CMB cc: (federal express) Peter D. Dickson, Esq. Robert J. McNamara, Esq.